#### Johnson v. Meyer.

No. 2.

Decided April 25, 1891.

Practice—Premature suit— When objection taken.

Upon appeal objection cannot be made for the first time that a suit to foreclose a mortgage was brought before its conditions were broken.

APPEAL from Chicot Circuit Court in chancery.

Carroll D. Wood, Judge.

D. H. Reynolds for appellant.

U. M. & G. B. Rose and James F. Robinson for appellee.

Hemingway, J.

This was a suit brought against W. W. Johnson to foreclose a mortgage on personal property executed by him to Meyer. Johnson having died, the cause was revived against his personal representative, and a decree of foreclosure rendered. We are asked to reverse the judgment of the court below because it erred in not dismissing the suit, it having been brought before a breach of the conditions of the mortgage. There was no motion to dismiss or other objection urged to the prosecution of the suit on this ground. On the contrary, the appellant’s testator answered, and asked that a reference be made to a master to state an account between him and the plaintiff. The appellant cannot now for the first time object that the suit was prematurely brought.

Affirmed.